A Cross-Examination Ends, and Judging Begins, for Simpson Lawyer

By DAVID MARGOLICK

Published: March 19, 1995

LOS ANGELES, March 18—
F. Lee Bailey's cross-examination of Mark Fuhrman this week was probably not just the most widely watched interrogation ever but also the most touted, primarily by Mr. Bailey himself. And when it was over, it was surely the most criticized.

For three days, the 61-year-old Mr. Bailey went at Mr. Fuhrman, the detective whom O. J. Simpson's lawyers have accused of planting incriminating evidence. But by the time Mr. Fuhrman stepped down, the consensus was that Mr. Bailey had not produced, that for all of his noises beforehand, the last roar of the lion was really more of a meow.

Mr. Bailey was roundly second-guessed. Worse, perhaps, he was pitied.

"Bailey's job was to show Fuhrman to be evil, and he did not do that," said Laurie Levenson of Loyola University Law School in Los Angeles. "It was to show Fuhrman as a racist, and he has not yet done that. And it was to show that Fuhrman moved a glove, and he certainly did not do that.

"He has an accomplished career, and he himself might have seen it as a kind of comeback, but he didn't seem to have the right style or look for this cross-examination before this jury. If this is his last great cross-examination, this cannot be the way he wanted to go out. On the one hand, it's kind of sad, but on the other, for this case he created his own legend."

But Mr. Bailey, who has ridden the Simpson case back into prominence after a decade in the shadows, seemed unperturbed by the second-guessing. With Mr. Fuhrman, he insisted, he had accomplished everything he had set out to do plus more, as would be evident once the defense presents its case. Anyone looking for a confession, he said, was a fool.

"For those expecting a Perry Mason finale, I say, 'Go back to the fictional world you came from,' " he harrumphed. "I've seen such things happen twice in over 40 years."

Mr. Bailey dismissed his critics as poseurs who could not find their way around a courtroom. "A lot of these pundits out here don't have work, or have an academic background that has given them little practical experience and therefore few credentials to judge the subtleties of a difficult cross-examination," he said.

He added that the only critics he worried about -- Mr. Simpson and the chief defense lawyer, Johnnie L. Cochran Jr. -- felt differently. "If Johnnie was smiling and O. J. was smiling, it was for a reason," he said. "By the end, I got a very comfortable impression from both of them that they felt we had turned a very important corner. Johnnie told me: 'It was very good, my brother. I think we've come a long way.' That's high praise from Johnnie."

Also impressed, he said, were the people -- 19 at last count, including alternates -- in the jury box. Mr. Bailey said he made a practice never to look at jurors, lest they feel intimidated or put upon. But he said he had sneaked some glances and liked what he saw. "My feeling was -- and this is not racially divided -- that they thought the job had been done in a way they approved of," he said.

With a certain kind of courtliness, he said he had settled his differences with the chief prosecutor, Marcia Clark, who had not only called him a liar but had ridiculed him for everything from his work habits to his legal knowledge to the size of his hands. He attributed her vitriol to the twin pressures of a high-profile case and the bitter child custody battle in which she is embroiled.

"I don't think that that's Marcia," he said. "That's just bitterness, and Marcia has lapsed into that from time to time. She's a very talented lawyer, and if she needed help, I'd probably give it to her. Basically, I'm a fan of both prosecutors."

On Thursday, he said, Ms. Clark told him his cross-examination of Mr. Fuhrman had been brilliant. "Your Honor, apparently our situation has quieted some," Mr. Bailey said he told Judge Lance A. Ito at the bench afterward. "I just received a very nice compliment from Ms. Clark."

He said Ms. Clark chimed in: "I wasn't kidding. I was very sincere."

As Mr. Bailey advertised it beforehand, the session with Mr. Fuhrman was to have been a public evisceration. He compared the detective to an 1,800-pound marlin, "hooked, gaffed and already on the boat," and said that any lawyer who did not savor the chance to question someone so vulnerable was an idiot.

Outside the jury's presence, Mr. Bailey pledged to show -- "with evidence far stronger than the People will ever offer against O. J. Simpson for the murders" -- that Mr. Fuhrman was such a bigot and opportunist that he had picked up one of two gloves the defense insists were lying near the bloody corpses of Nicole Brown Simpson and Ronald L. Goldman and dropped it at Mr. Simpson's home two miles away.

When Mr. Fuhrman's lawyer, Robert Tourtelot, accused him of plotting "the greatest character assassination ever mounted," Mr. Bailey called the comment "both flattering and anticipatory." He was then asked if such a courtroom auto-da-fe was in the offing. "Hopefully," he replied.

But Mr. Fuhrman left the stand standing, perhaps even enhanced. Instead, it was Mr. Bailey who seemed wounded. There was the sight on national television on Wednesday of a female lawyer, 20 years his junior, essentially telling him to sit down and shut up. More than once, Judge Ito grew annoyed with him. And after grilling Mr. Fuhrman on his use of the word "nigger," Mr. Bailey's current co-counsel and former best friend, Robert L. Shapiro, implicitly faulted him by expressing regret that race had become so important a factor in the case.